Standard-Essential Patents: Huawei Case, a Non-Solution to an Avoidable Problem

Gabriele Carovano

Abstract

In light of the judgment of the Fifth Section of the Court of Justice of July 16, 2015 relating to the so called Huawei case (C-170/13), this paper intends to reconstruct the regulation of the standard-essential patents, the problems that such discipline causes, the manners in which these problems are solved, as well as the criticalities of the said solutions. In fact, the said judgment seems to be intended to operate as a Grundnorm because, for the first time in this field, it provides directions in order to identify when the owner of an intellectual property right embedded in a standard, is liable under art. 102 of the Treaty on the Functioning of the European Union (TFUE) in the event that such owner files for a prohibitory injunction against an “infringer”. Following this judgment, indeed, the conflicting domestic case-law that has been developing so far in different Member States on these issues will hopefully standardize.

Starting from these bases, this paper will first proceed to reconstruct the phenomenon of standardization and show what significance this has taken within the European Union. Subsequently, it will analyze the European regulation of the standardization process and, in particular, how it is implemented in the telecommunications sector. Given the above, this paper will verify whether the regulatory framework is effective and will attempt to give account of how such regulation has been implemented in certain Member States, as well as of the critical issues that the solutions adopted by the case law have raised. Certain recent cases handled by the European Commission (EU Commission) relating to these issues and the positions that such institution has achieved will also be analyzed. Finally, the mentioned judgment of the Court of Justice relating to the case Huawei and the compromise solution that the Court has achieved will be analyzed. Lastly, in light of the results obtained, this paper will outline the overall criticalities of the current modalities of carrying out the standardization processes and will present some possible solutions.